'Technologist' Could Assist Secret Court That Oversees NSA

And the president will announce plans for reform this Friday. The NSA says it's open to some reforms. On MORNING EDITION last week, NSA official Chris Inglis told us the agency is considering leaving telephone records in private hands.

CHRIS INGLIS: The program would have to have sufficient agility. And if you had a plot that was unfolding at the speed that a human or perhaps individuals coordinating across time and space were effecting, you'd have to have some confidence you could move at that speed.

MONTAGNE: People closely listening to Inglis included Barton Gellman of The Washington Post. He's received documents from Edward Snowden. And Gellman says it will be hard to keep the phone records program functioning.

BARTON GELLMAN, THE WASHINGTON POST: They have to do an enormous amount of processing of that information in advance. And that means they can't leave it in three different places.

STEVE INSKEEP, HOST:

In other words, they can't just leave it with a variety of phone companies and easily just go after it in the same way that they've been going after recently.

POST: Right. I think actually they can't do it the way they've been doing it at all, if it's left in the hands of three different phone companies. And I think they've been pointing that out to the president.

INSKEEP: The agency might prefer giving all records to some independent third party.

Barton Gellman was also listening when the NSA official told us he would welcome a public advocate before the secret court that oversees the agency.

POST: I think Chris Inglis had some very interesting things to say, both about the public advocate and even unbidden he volunteered the idea of a technology advisor for the Foreign Intelligence Surveillance Court.

INSKEEP: Explain what that would be.

BARTON GELLMAN: Well, you have judges who are not computer scientists, who are not national security experts, being asked to decide the legal questions of an enormously complex set of facts. So complex, in fact, that in an earlier case in which one of those judges held that the NSA had been violating the Fourth Amendment to the Constitution, the NSA's response was that there was actually no one here who understood these programs well enough in their totality to represent what they were doing accurately to the court, because the court said it had been misled for a period of years.

INSKEEP: So this is a major concession then by the NSA were it to happen.

GELLMAN: It seemed so and the question is always in the details. I mean one of the most revealing things about oversight in this whole six months of stories has been what the chief judge of this Foreign Intelligence Surveillance Court said to my colleague Carol Leonnig at The Washington Post. He said we rely entirely on what the NSA tells us about what it's doing.

We have no independent fact-finding or investigative power. We don't go over to the NSA and ask questions and investigate. We wait for them to come to us and tell us what they're doing. So a technologist could advise the court on the meaning of what the NSA is saying. But if the court doesn't have investigative power, it puts a greater burden on other oversight methods.

INSKEEP: Other oversight methods, meaning Congress, for example.

GELLMAN: Meaning Congress, for example, which does had subpoena power and which also has very limited staffing that is both capable of understanding what's happening and cleared to know what's happening.

INSKEEP: So I want to play a little piece of this interview that we had with Chris Inglis, the retiring top civilian at the National Security Agency. He had already, at this point in our discussion, agreed that in hindsight he wished that he had disclosed more and so that led to another question in my mind. Here it is.

Is there a program within the NSA that you think if it were disclosed that there would be significant public debate about its correctness?

INGLIS: No, I don't think so. I essentially at the NSA have about 36,000 pages of requirements that I'm working on behalf of the executive branch. But those all can be traced back explicitly to an explicit authority, either from a court or from some executive branch authority, that says here's your authority to go get that.

INSKEEP: He says, I'm only doing as an agency what I'm told by other agencies, and no, I don't think there's anything else that would bother you. As someone who has studied a lot of the documents, Barton Gellman, do you think he's right?

GELLMAN: The answer he gave you would've applied exactly the same to the meta data program, to the collection of all American's call records. That's to say they were responding to intelligence requirement, meaning, you know, how do we find out X, Y or Z, and they were doing it under the authority of this closed system that said it was perfectly fine. And moreover they were comfortable with the idea that the American public would understand and agree if the program were disclosed.

So there could be any number of things they're doing. One that comes to mind, you asked Chris Inglis about the cancellation of a program in 2011 that was collecting all the records of everyone that all Americans were emailing and who they were emailing and who they were emailing. They said they're no longer collecting it under that authority, in that manner. It seems exceedingly unlikely to me that they are no longer collecting it at all.

INSKEEP: So you're instinct is, there's more information out there. There are more stories to come.

GELLMAN: I certainly have more stories that I think will raise interesting questions for public policy, and I think I won't say anymore about them right here and right now.

INSKEEP: Barton Gellman, who writes for The Washington Post and is also a senior fellow at The Century Foundation. Thanks very much.

GELLMAN: Thanks for having me.

INSKEEP: And more facts about the NSA are being reported this morning. The New York Times reports the agency implanted surveillance software in 100,000 computers around the world. You're listening to MORNING EDITION from NPR News. Transcript provided by NPR, Copyright NPR.